HKSAR v. RAMAN KAPUSAMY

CACC 32 /2020

[2021] HKCA 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCCC NO 126 OF 2019)

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J U D G M E N T

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1.  The applicant pleaded not guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and stood trial in the High Court before D’Almada Remedios J (“the judge”) and a jury. On 12 March 2020, the applicant was unanimously convicted and, on the same day, sentenced to 26 years’ imprisonment. He now applies for leave to appeal against both conviction and sentence.

2.  The particulars of the count alleged that on 3 June 2018, at Hong Kong International Airport, the applicant had unlawfully trafficked in 2,970 grammes of a crystalline solid containing 2,956 grammes of methamphetamine hydrochloride (commonly known as “Ice”).

The prosecution case

3.  Much of the evidence for the prosecution was not in dispute.  On 3 June 2018, the applicant had departed from Ho Chi Minh City in Vietnam for Hong Kong on flight VN 598.  He had checked in one piece of check-in baggage with the luggage tag number VN722230[1].

4.  At about 9:35 pm on the same day, the applicant was intercepted by Customs officers at Arrival Hall B of Hong Kong International Airport, while pushing a baggage trolley on which one black backpack and one blue travel bag with the tag number VN722230 (Exhibit P19) were placed.  At that time, Exhibit P19 was locked with a padlock[2]. The applicant was taken for an X-ray examination of his luggage.  The X-ray monitor detected something suspicious inside Exhibit P19.  Accordingly, a Customs officer (“PW3”) asked the applicant if Exhibit P19 belonged to him and the applicant answered “Yes” in English.  PW3 asked the applicant whether he had the key to open the padlock on Exhibit P19.  The applicant searched his front trouser pocket and said, “No key”[3]. PW3, therefore, cut open the padlock and opened Exhibit P19, inside of which were three backpacks, each in a transparent plastic bag, together with a pile of clothes[4].

5.  PW3 cut open the inner lining of one of the backpacks and found one paper packet wrapped with adhesive tape, which was cut open to reveal a white crystalline substance wrapped in a plastic bag and carbon paper.  A drug test was immediately conducted on the substance, which proved positive for the presence of Ice.  The applicant was duly arrested for trafficking in a dangerous drug and cautioned[5]. A search was conducted on the applicant and two keys to the padlock of Exhibit P19 were found in his right front trouser pocket.  When the keys were found, the applicant said, “Oh, here”[6]. PW3 also cut open the inner lining of the two remaining backpacks and found similarly wrapped packets of crystalline substance.  These three packets of substance were subsequently confirmed by the Government Chemist to be a total of 2,970 grammes of a crystalline solid containing 2,956 grammes of Ice.  The retail value of the Ice in question was HK$1,577,070[7].

6.  The applicant spoke Tamil and a little English. At 9:30 am on 4 June 2018, a Customs Inspector (“PW5”) conducted a preliminary enquiry with the applicant with the assistance of a Tamil/English interpreter.  The applicant told him that someone whom he did not know would meet him at the arrival hall of the Airport to collect Exhibit P19[8].

7.  Armed with a court warrant, PW5 proceeded to examine the contents of the applicant’s mobile telephone.  He discovered that the applicant had had several conversations with a person called “Chandru” via WhatsApp, which were mostly voice messages made in the Tamil language[9].

8.  Between 7:05 pm and 9:53 pm on 4 June 2018, with the assistance of a Tamil/English interpreter, a video record of interview (“VRI”) was conducted with the applicant.  The voluntariness of the VRI was not disputed[10]. In summary, the following matters were elicited in the VRI:

a)     Chandru was an old friend of the applicant’s from his school days but the applicant did not know his full name, and it was not until he was arrested that he realised Chandru was engaged in illegal business[11];

b)     Chandru had instructed the applicant to go to Hanoi in Vietnam, and he had arranged and paid for the applicant’s passport, his flight ticket and the hotel[12];

c)     Chandru did not tell the applicant the nature of the “job” he had in mind[13];

d)     The applicant went to Hanoi and then to Ho Chi Minh City for sightseeing and was due to return to Malaysia on 2 June 2018[14];

e)     The applicant came to Hong Kong on Chandru’s instructions; in exchange, Chandru said he would not ask the applicant to repay the debt of 500 Ringgit which he owed to Chandru[15].  The applicant said he did not receive any reward for bringing Exhibit P19 to Hong Kong[16];

f)     Before the applicant departed from the hotel in Ho Chi Minh City for the airport, a woman had given him Exhibit P19.  The applicant asked the woman what was inside Exhibit P19, whereupon she opened Exhibit P19 and showed him the 3 bags inside.  She then locked the padlock to Exhibit P19 and gave the applicant the key.  Thereafter, the applicant did not open Exhibit P19[17];

g)     The applicant thought Exhibit P19 was heavy because “so many clothes were in it”[18];

h)     The applicant was asked why he had sent a WhatsApp message, namely “I am sweating”, to Chandru from Ho Chi Minh City airport and he explained that it was because he was walking here and there and people were asking so many questions which he did not know how to answer[19];

i)       The applicant understood that someone would come to Hong Kong International Airport to meet him and collect Exhibit P19 from him[20];

j)       When the Customs officer asked him about the key to the padlock on Exhibit P19, he had said there was no key because he thought he had lost it[21];

k)     The applicant felt he was cheated by Chandru because he wanted to travel.  The applicant swore that he had no knowledge there were dangerous drugs inside Exhibit P19 and also voiced his concern about his children[22].

The defence case

9.  The defence case was that the applicant did not know of the presence of the Ice secreted inside Exhibit P19 at the time of entering Hong Kong: he believed he was carrying gold bars.

10.  The applicant elected to give evidence.  He was 35 years old, a married man with three children and living in Selangor in Malaysia.  He worked as a labourer, earning about 80 Malaysian Ringgit per day and working about 16 days in a month.  He owed Chandru 500 Ringgit.  The applicant’s mother had passed away and his wife was expecting another child.  Since he was in need of money, he asked his friend called Saravana to help him find an extra job.  Sometime later, Saravana told the applicant that he could get a job in delivering gold abroad for Chandru.  Chandru said that he would be paid 5,000 Malaysian Ringgit (equivalent to about HK$9,850) for the job but did not say when the applicant would be paid.  The applicant learnt from Saravana that Chandru had paid for the applicant’s passport and the flight ticket.  The applicant had further introduced a friend of his, who was a fellow labourer like himself, also to deliver gold for Chandru[23].

11.  On 28 May 2018, the applicant flew from Kuala Lumpur in Malaysia to Hanoi in Vietnam.  Chandru contacted the applicant and gave him instructions on WhatsApp.  The applicant complied with the instructions he received.  On 1 June 2018, Chandru told the applicant to buy a one-way ticket to fly to Ho Chi Minh City, and Chandru would send money to the applicant for that purpose.  The applicant did not know where the gold bars would be delivered until he was in Ho Chi Minh City[24]. 

12.  On 2 June 2018, the applicant arrived in Ho Chi Minh City and, on Chandru’s instructions, contacted an Indonesian woman.  On 3 June 2018, over the telephone, Chandru instructed the applicant to go to Hong Kong but he said that he wanted to go home.  Chandru then threatened the applicant that if he did not deliver the gold from Ho Chi Minh City to Hong Kong, the applicant’s wife and children would be killed.  Accordingly, the applicant agreed.  However, in re‑examination, the applicant said he entered Hong Kong willingly and not under threat.

13.  Before going to Ho Chi Minh City airport, the Indonesian woman gave Exhibit P19 to the applicant.  When the applicant asked why the travel bag was so heavy, the woman responded that it was because of the gold hidden inside.  The woman showed the applicant a backpack, which looked exactly the same as those inside Exhibit P19, and the applicant saw some gold bars.  Therefore, applicant believed he was taking gold bars concealed in the backpacks to Hong Kong.  Chandru told the applicant that two men would take him from the airport in Hong Kong to a hotel and the applicant was to leave Exhibit P19 in the car.  This instruction was different from that subsequently sent by Chandru to the applicant via WhatsApp[25].

14.  When the applicant arrived at Hong Kong International Airport, he was intercepted and asked for the key to the padlock on Exhibit P19.  The applicant said he had forgotten that there was a small pocket within the right front pocket of his trousers.  The applicant only realised he had been cheated by Chandru and had brought in dangerous drugs when he talked to the Tamil interpreter on the following day.  He explained that he had not told the Customs officers about delivering gold bars during the VRI because he thought the VRI would be broadcast on television.  He was frightened and thinking of his children at the time[26].

Issue at trial

15.  The sole issue at trial for the jury’s determination was whether the applicant knew he was bringing dangerous drugs concealed in Exhibit P19 into Hong Kong.

Appeal against conviction

16.  The applicant has not advanced any substantive ground of appeal against conviction but has raised several matters of evidence before me this morning, and complains that the trial was unfair and his conviction unsafe.  For this reason, he asks that an appeal aid certificate be granted to him so that he can have the benefit of legal advice.  I note that legal aid was refused on 29 June 2020.

17.  For the respondent, Mr Lai contended that there was nothing to suggest the trial was unfair or the conviction unsafe or unsatisfactory.  He highlighted the judge’s directions on some suggested inconsistencies between the applicant’s VRI, his evidence and the WhatsApp messages passing between the applicant and Chandru.  The judge told the jury that the previous statements made by the applicant were not statements of the truth of their contents but could be used to determine whether the applicant was a believable witness.  In particular, the judge suggested there were the following inconsistencies: the applicant’s purpose in going to Hanoi, Ho Chi Minh City and Hong Kong; whether the applicant would receive any reward for bringing Exhibit P19 to Hong Kong; how the applicant would hand over the Exhibit P19 in Hong Kong; what the contents of Exhibit P19 were; and why Exhibit P19 was so heavy[27]. The judge also reminded the jury of the applicant’s explanations for such inconsistencies, before directing the jury in accordance with Specimen Direction 27.1 as to how to deal with those alleged consistencies[28].

18.  The judge specifically directed the jury on the issue of knowledge and that the prosecution must satisfy the jury so that they were sure that the only reasonable inference they could draw from the primary facts was that the applicant knew he was bringing dangerous drugs into Hong Kong[29]. The judge set out the prosecution submissions as to the applicant’s knowledge[30], then repeated the defence submissions on the issue[31].

Appeal against sentence

19.  Observing that the applicant had brought in 2,956 grammes of Ice narcotic, and with reference to HKSAR v Abdallah^[32], the judge adopted a starting point of 24 years’ imprisonment, which she then enhanced by 2 years for the international element involved in bringing dangerous drugs across the border into Hong Kong.  Accordingly, the applicant was sentenced to a total of 26 years’ imprisonment[33].

20.  The applicant’s complaint is that his sentence was “very long”.

21.  Mr Lai submitted, on the other hand, that on a purely arithmetical basis, 2,956 grammes of Ice could have attracted a starting point of 24 years and 10 months’ imprisonment under the guidelines in Abdallah and HKSAR v Tam Yi Chun[34]; furthermore, the enhancement of 2 years’ imprisonment for the international element was correct.  Had the judge sentenced the applicant on a purely arithmetical basis, the resultant sentence could have been 26 years and 10 months’ imprisonment. Accordingly, the sentence could not be said to be manifestly excessive or wrong in principle.

Consideration

22.  This case was one of three jury trials delayed because of the General Adjourned Period in early 2020 caused by the Covid-19 pandemic.  The delay in the present case was just over 6 weeks after the evidence had concluded and before the judge delivered her summing-up.  For that reason, the judge was evidently careful to give thorough directions of law and a comprehensive summary of the evidence.  The directions of law followed discussions between the judge and both counsel on 10 March 2020 as to what issues the summing-up should or should not engage.

23.  There are no obvious errors of law in what was a straightforward and simple issue of knowledge for the jury; nor is there any deficiency in the judge’s summary of the evidence in her summing-up.  I have been taken this morning through the judge’s directions dealing with the issues of knowledge and inferences.  I see no reasonable grounds of appeal against conviction.

24.  In respect of the appeal against sentence, the applicant’s sentence was in accordance with the guidelines applicable to Ice. As Mr Lai has pointed out, the sentence could have been 10 months longer than it was, if one were to be strictly arithmetical in applying those guidelines to an international courier carrying the amount of Ice in question. No complaint can be made either as to the starting point adopted in respect of 2,956 grammes of Ice narcotic, or the additional 2 years for the international element of bringing almost 3 kilogrammes of the drug of high purity over the border into Hong Kong.  Both were in accordance with authority.  The applicant’s personal circumstances do not provide any reason to reduce the sentence for a crime as serious as international drug trafficking.  I can see no reasonably arguable grounds of appeal against sentence.

Conclusion

25.  Accordingly, I refuse leave to appeal against both conviction and sentence.  It follows that I also refuse his further application for an appeal aid certificate.  I advise the applicant that he has the right to renew either or both applications for leave to appeal to the Court of Appeal, but I should also warn the applicant that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the particular application.